Opinion
F072573
01-17-2017
FRED JACKSON, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION et al., Defendants and Respondents.
Fred Jackson, in pro. per., for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Jonathan L. Wolff, Assistant Attorney General, Thomas S. Patterson and Erick J. Rhoan, Deputy Attorneys General, for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CV-281820)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge. Fred Jackson, in pro. per., for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Jonathan L. Wolff, Assistant Attorney General, Thomas S. Patterson and Erick J. Rhoan, Deputy Attorneys General, for Defendants and Respondents.
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Plaintiff and appellant Fred Jackson, a state prison inmate, sued the California Department of Corrections and Rehabilitation (CDCR or department), M.D. Biter, who is the warden of Kern Valley State Prison (KVSP), and S. Lopez, who is the chief medical officer of KVSP, alleging he sustained illnesses because they failed to remedy the arsenic-contaminated drinking water at KVSP for several years while he was incarcerated there. The trial court sustained defendants' demurrer to Jackson's first amended complaint without leave to amend and he appeals.
We conclude the demurrer was well-taken as to all causes of action against CDCR, which enjoys a broad statutory immunity to liability for injuries to prisoners. It also was well-taken as to Lopez. For each cause of action, either an immunity defense barred suit against Lopez or the first amended complaint failed to plead sufficient facts against her. The court granted Jackson leave to amend the original complaint and it was not obliged to do so again after he failed to add sufficient facts by amendment. As to Biter, however, the complaint sufficiently alleged one cause of action for which no statutory immunity was available, a claim maintainable under Government Code section 840.2 based on a dangerous condition of public property. We will affirm in part, reverse in part, and remand. We also will direct the trial court to reconsider some of Jackson's motions on remand.
FACTS AND PROCEDURAL HISTORY
Jackson filed his original complaint in the superior court on April 23, 2014. Named as defendants were Biter, Lopez, and "California Department of Corrections and Rehabilitation Director." Biter and Lopez were personally served with the complaint and summons on September 4, 2014. According to the superior court docket, the department was served on September 5, 2014, through then-Secretary Jeffrey Beard. There is no indication in the record that Beard was (or was not) served as an individual, despite the reference to a "Director" in the complaint. When the Attorney General's office appeared in the case to submit defendants' demurrer, it did so on behalf of the department, Biter, and Lopez. Neither Beard nor the current secretary of CDCR have ever made an appearance in the case as individuals, as far as the appellate record shows.
We express no opinion on whether the Secretary of CDCR was ever properly made a defendant in, or was ever dismissed from, this case. These questions have not been litigated in the trial court and the trial court's orders sustaining the demurrers make no reference to the Secretary.
The complaint alleged that Jackson had previously been an inmate at KVSP and that, during his time there, the drinking water contained an excessive level of arsenic. While at KVSP, Jackson allegedly developed an enlarged prostate and spots of white discoloration on his skin.
Besides arsenic exposure, the original complaint also includes references to exposure of inmates to the valley fever pathogen. The complaint appears to be adapted from a form complaint designed to be used in other litigation against CDCR involving valley fever. The valley fever references seem to have been left in Jackson's complaint inadvertently.
Attached to the complaint as an exhibit was a compliance order issued by the California Department of Public Health (DPH) on December 12, 2008. The order stated that the water system at KVSP, which drew water from groundwater wells and served 4,800 prisoners and 1,140 staff, was out of compliance with a maximum contaminant level (MCL) for arsenic adopted by the federal government on January 23, 2006, and by California on November 28, 2008. The maximum level, 0.01 milligrams per liter, was exceeded at KVSP on each of seven test dates in 2007 and 2008, sometimes by a factor of two or more. The level of arsenic in KVSP's drinking water violated a federal regulation (40 C.F.R. § 141.62(b)(16)), a state regulation (Cal. Code Regs., tit. 22, § 64431, subd. (a)), and a state statute (Health & Saf. Code, § 116555, subd. (a)(1), (3).) DPH had previously issued a notice of violation to KVSP on March 10, 2008. The order directed KVSP to cease and desist from exceeding the MCL, submit a plan for correcting the problem, and distribute notices of the violation to its water system users.
A copy of the notice KVSP was ordered to distribute also was attached to the complaint. It stated, "You do not need to use an alternative (e.g., bottled) water supply." It further stated, "This is not an emergency. If it had been, you would have been notified immediately. However, some people who drink water containing arsenic in excess of the MCL over many years may experience skin damage or circulatory system problems, and may have an increased risk of getting cancer."
Jackson also attached medical records to the complaint. They indicated he had benign prostatic hypertrophy (i.e., a noncancerous enlarged prostate) which was being treated with a prescription medication. The records also indicated that Jackson had a number of medical appointments at which he complained of white spots on his skin. The records indicated that no spots were found upon examination, except on one occasion when a nurse found six "small pinpoint dots" about 0.1 centimeters in diameter.
The complaint alleged that Jackson had exhausted his administrative appeals dealing with his claims. He attached written decisions rejecting his appeals at the first, second, and third levels. At each level, the reviewer took the position that, although the arsenic level in KVSP's water exceeded the level deemed safe by federal and state law, the water in reality was not unsafe. The level of arsenic in the water did not increase; instead, the legally safe level had been reduced. The new legal limit was "below the amounts that commonly exist in California groundwater." The amount of arsenic in KVSP's water was described as only "slightly" above the regulatory limit. Further, although federal and state law deemed the arsenic level unsafe for drinking water and the DPH-mandated notices distributed at the prison warned of adverse health effects of long-term exposure, the prison had obtained its own expert opinion to the contrary: "KVSP has consulted with toxicology experts who have advised that the levels of arsenic in the water supply at KVSP do not threaten the health of persons who drink the water." The same language was repeated in the decisions issued at each level. The decisions further stated that almost five years after being notified of the violation, CDCR finally complied with the law by building a filtration system that was completed in December 2012 and began operating in 2013.
The complaint also recited that Jackson had submitted his claims to the Victim Compensation and Government Claims Board (VCGCB). VCGCB advised Jackson that "the court system is the appropriate means for resolution of these claims, because the issues presented are complex and outside the scope of analysis and interpretation typically undertaken by" VCGCB.
The causes of action alleged in the complaint are described under the headings "intentional tort," "exposure to hazardous conditions," and "negligence" (capitalization omitted). Relying primarily on the Unruh Civil Rights Act (Civ. Code, § 51) and related statutes (Civ. Code, §§ 51.7, 51.9, 52, 52.1, 52.3, 52.5), the complaint claimed defendants intentionally or negligently caused Jackson to drink unsafe water, resulting in harm to his health. The complaint also cited Government Code sections 815.6 (failure of public entity to discharge mandatory duty) and 830 et seq. (liability of public entities and employees for dangerous conditions of property). It prayed for compensatory damages, punitive damages, and declaratory relief.
With the complaint, Jackson filed a motion for appointment of counsel. The motion argued that Jackson was entitled to appointed counsel under constitutional due process and equal protection principles, and under the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) and other laws due to a vision impairment. He attached medical and other prison records indicating his vision impairment. He had eye conditions called keratoconus and pterygium, and his vision was 20/200 in both eyes with corrective lenses. On July 14, 2014, the court denied the motion for appointment of counsel. It stated that the provisions of the California Rules of Court pertaining to disability accommodations did not include appointment of counsel as an accommodation, and that there was no statutory or constitutional right to appointed counsel for a plaintiff in a general civil action.
On September 24, 2014, Jackson filed motions for appointment of an expert witness and for a court-ordered physical examination of himself by a doctor. He argued he would need expert testimony and evidence of his medical condition to show he was suffering effects of arsenic toxicity.
Defendants filed a demurrer to the original complaint on October 6, 2014. It argued that Jackson failed to plead facts sufficient to constitute a cause of action under any of the statutes the complaint cited. The demurrer also cited several immunity provisions of the Government Claims Act (Gov. Code, § 810 et seq.). After a hearing on November 26, 2014, at which Jackson appeared telephonically, the trial court sustained the demurrer with leave to amend all causes of action. The appellate record contains only the trial court's minute order on this ruling, which does not state the trial court's reasoning. The trial court's docket does not indicate any ruling at that time on Jackson's remaining motions.
Jackson filed motions for a physical examination and appointment of an expert witness again on March 13, 2015. The trial court denied these motions after a hearing on March 26, 2015, at which Jackson appeared telephonically. The court stated the motions were untimely and failed to comply with service and filing requirements.
Jackson filed his first amended complaint on April 10, 2015. While still arranging the claims under headings of intentional tort, exposure to hazardous conditions, and negligence, the first amended complaint relied primarily not on civil rights statutes but on provisions of the Government Claims Act: Government Code sections 815.6, 820, 835, 840.2, and 845.6.
The first amended complaint also refers to Government Code sections 820.8, 830, 835.2 and 840.4, but those sections do not establish causes of action. They either contain definitions or state circumstances under which defendants are not liable. Government Code section 820 provides simply that a public employee is liable for injury to the same extent as a private person, except as otherwise provided by statute. --------
Government Code section 815.6 provides that if an enactment imposes a mandatory duty on a public entity, and the entity fails to discharge the duty, the entity is liable for an injury proximately caused by the failure unless it shows it used reasonable diligence in attempting to discharge the duty. The first amended complaint alleged that the December 2008 compliance order from DPH was an "enactment" within the meaning of Government Code section 815.6, imposing a mandatory duty to comply with the drinking water standards, and KVSP failed to discharge the duty for several years while Jackson was in custody there, causing his prostate and skin conditions.
Government Code section 835 provides that a public entity is liable for injury proximately caused by a dangerous condition of its property where the dangerous condition created a reasonably foreseeable risk of the injury and either a negligent act of the entity's employee created the dangerous condition or the entity had actual or constructive notice of the condition a sufficient time before the injury. Government Code section 840.2 provides for similar liability for a public employee where the employee had authority, responsibility, and funds to protect against the dangerous condition and was negligent or had notice. The first amended complaint alleged that the noncompliant drinking water constituted a dangerous condition of CDCR's property at KVSP; that the DPH order gave actual notice of the condition; that the notices distributed at KVSP noting the health risks of long-term exposure made Jackson's injury reasonably foreseeable; and that Biter had means of protecting against the dangerous condition by providing all inmates with bottled water, as was allegedly provided to those inmates who could pay 75 cents for a bottle at the prison canteen. In this context, the first amended complaint also cited a regulation stating that a state prison's warden "is responsible for the custody, treatment, training and discipline of all inmates under his or her charge." (Cal. Code Regs., tit. 15, § 3380, subd. (a).)
Government Code section 845.6 provides that a public entity and a public employee are not liable for failure to furnish or obtain medical care for a prisoner, except that an employee and entity with reason to know of a prisoner's need for immediate medical care can be liable for a failure to take reasonable action to summon it. The section further states that it does not exonerate a doctor from liability for malpractice or an entity employing a doctor from liability for an obligation to pay a malpractice judgment against the doctor. The first amended complaint alleged liability under this section because, although Jackson's prostate condition was treated, Lopez failed to cause any treatment to be provided for the white spots on Jackson's skin.
In addition to these Government Code sections, the first amended complaint relied on Civil Code sections 1709 and 1710, which deal with liability for "deceit." Civil Code section 1709 provides: "One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers." Civil Code section 1710 states the definition of "deceit." The first amended complaint alleged that Lopez, knowing of Jackson's prostate and skin conditions and their origins in the contaminated water, "appears to have downplay[ed] the significant and known symptoms and [led Jackson] to believe them to be naturally caused with age" via reports by her subordinates, and he was induced by this to "alter his position." In connection with these claims, the first amended complaint also cited Government Code section 822.2, which provides: "A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice."
The first amended complaint also cited Health and Safety Code section 116555 and California Code of Regulations, title 22, section 64431. These provisions pertain to drinking water safety, as mentioned above. Health and Safety Code section 116555, subdivision (a)(1) and (3), requires the owner of a public water system to ensure the system "[c]omplies with primary and secondary drinking water standards" and "[p]rovides a reliable and adequate supply of pure, wholesome, healthful, and potable water." Section 64431 of title 22 of the California Code of Regulations establishes 0.01 milligrams per liter as the primary MCL for arsenic in public water systems.
The first amended complaint added some factual allegations not included in the original complaint. It stated that Jackson was transferred to KVSP in August 2008 and began to be aware of his prostate and skin symptoms in December 2012. It further alleged that he received a "positive diagnostic prostate cancer test result" on September 23, 2014, and another such result on November 12, 2014, that was "two times higher than normal." In a declaration attached to the first amended complaint as an exhibit, Jackson stated he had had surgery on his prostate A record of a medical appointment stated that Jackson had "several small bumps" on his right arm. Hydrocortisone cream was prescribed.
Defendants filed a demurrer to the first amended complaint on May 7, 2015. Jackson filed a brief in opposition and again filed motions for a physical examination and appointment of an expert witness, along with a request to exceed the page limit for his opposition brief.
The demurrer and the motions were heard on August 5, 2015. Jackson did not appear. After the hearing, the trial court issued a tentative ruling to sustain the demurrer without leave to amend and to deny Jackson's motions. Jackson filed objections to the tentative ruling on August 24, 2015. Among other things, he stated he was denied his right to appear at the hearing because his request for a telephonic appearance was "mistakenly or inadvertently los[t]" after he gave it to a prison officer to be mailed.
On August 26, 2015, the trial court adopted the tentative as its ruling. It sustained the demurrer without leave to amend, denied the motions, and overruled Jackson's objections.
The court's written ruling stated that, under Government Code section 844.6, the department was immune from all of Jackson's causes of action except for the claim under Government Code section 845.6 of a failure to summon medical care. Government Code section 844.6 provides that with some exceptions, a public entity is not liable for "[a]n injury to any prisoner." (Gov. Code, § 844.6, subd. (a).) The section does not immunize public employees, however. (Gov. Code, § 844.6, subd. (d).)
The ruling further stated that all defendants were immune under Government Code section 845.2 to all causes of action except for the one based on a dangerous condition of property under Government Code sections 835 and 840.2. With that exception, Government Code section 845.2 immunizes both public entities and public employees against liability for "failure to provide a prison, jail or penal or correctional facility or, if such facility is provided, for failure to provide sufficient equipment, personnel or facilities therein."
The trial court also relied on a portion of Government Code section 822.2 to find the individual defendants immune from Jackson's claims under Civil Code sections 1709 and 1710. As noted above, Government Code section 822.2 provides a public employee with immunity for "an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice." The trial court's order stated that Jackson did not plead sufficient facts to state a cause of action for actual fraud, corruption, or malice.
According to the trial court, these immunity provisions covered all Jackson's causes of action except for the claim against the individual defendants for a dangerous condition of property. Regarding that claim, the court stated Jackson "fail[ed] to adequately plead that the arsenic levels in the water at [KVSP] present a substantial risk of injury sufficient to constitute a dangerous condition of public property."
The court ruled that, apart from immunity, Jackson failed to plead adequate facts to state his other causes of action as well. On the mandatory-duty claim under Government Code section 815.6, the court concluded the DPH compliance order did impose a mandatory duty, but Jackson failed "to plead any specific actions taken by defendant Biter in breaching the compliance order." He also failed "to allege a causal link between breaching the compliance order and any action taken by defendant Lopez." The department could not be vicariously liable if the employees were not liable. On the dangerous-condition-of-property claim under Government Code sections 835 and 840.2, the court ruled that Jackson did not "adequately plead that the arsenic levels in the water at [KVSP] present a substantial risk of injury sufficient to constitute a dangerous condition of public property." Regarding the deceit claim under Civil Code sections 1709 and 1710, the court held Jackson failed "to plead that he detrimentally relied on any false or concealed fact not given to him by defendants Biter and Lopez." On the claim of failure to summon immediate medical care under Government Code section 845.6, the court stated that the "first amended complaint and attachments show that [Jackson] was provided with medical care for his medical conditions."
The court rejected defendants' claim of immunity under Government Code section 820.2. That section immunizes a public employee from liability for "an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." The trial court stated this immunity "is an affirmative defense and cannot be asserted in a demurrer."
The court denied Jackson's motion to exceed the page limit in his opposition to the demurrer "because it is being used to submit materials which are outside the scope of the pleadings and not subject to judicial notice." It denied as moot Jackson's motions for a physical examination and appointment of an expert witness, since the case was to be dismissed based on the demurrer.
DISCUSSION
I. Standard of review
The standard of review is well-established:
"In an appeal from a judgment dismissing an action after a general demurrer is sustained without leave to amend, our Supreme Court has imposed the following standard of review. 'The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting
all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed "if any one of the several grounds of demurrer is well taken. [Citations.]" [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.'" (Genesis Environmental Services v. San Joaquin Valley Unified Air Pollution Control Dist. (2003) 113 Cal.App.4th 597, 603.)
We assume the facts alleged in the complaint to be true on demurrer "even though their proof appears unlikely." (Stanson v. Brown (1975) 49 Cal.App.3d 812, 814.) We also assume to be true "facts that may be implied or inferred from those expressly alleged." (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith (1998) 68 Cal.App.4th 445, 459.) II. Claim against Biter for dangerous condition of property
The trial court erred when it sustained the demurrer as to defendant Biter on the claim of injury from a defective condition of property. As we will explain, the first amended complaint alleged adequate facts to state a cause of action on this basis, and the immunity provisions relied on by defendants were not applicable.
Government Code section 840.2 provides:
"An employee of a public entity is liable for injury caused by a dangerous condition of public property if the plaintiff establishes that the property of the public entity was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
"(a) The dangerous condition was directly attributable wholly or in substantial part to a negligent or wrongful act of the employee and the employee had the authority and the funds and other means immediately available to take alternative action which would not have created the dangerous condition; or
"(b) The employee had the authority and it was his responsibility to take adequate measures to protect against the dangerous condition at the
expense of the public entity and the funds and other means for doing so were immediately available to him, and he had actual or constructive notice of the dangerous condition under Section 840.4 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition."
The first amended complaint adequately alleged all these elements. First, property is in a dangerous condition if its condition "creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used." (Gov. Code, § 830.) The first amended complaint alleged that KVSP's water system supplied contaminated water for several years, during which time inmates, including Jackson, could not avoid drinking the water, and there was a risk of significant health impacts from long-term exposure to the contaminant. Defendants do not argue that contamination in the drinking water on public property is not the type of dangerous condition of property for which there can be liability under this definition. It has been held that a dangerous condition of property for purposes of this statute need not be a physical defect in the property, so long as there is something about the physical condition of the property that increases the risk of harm to persons. (Pekarek v. City of San Diego (1994) 30 Cal.App.4th 909, 916.) The contaminated water delivered by KVSP's water system was something about the physical condition of the prison.
Next, the first amended complaint adequately alleged that Jackson was injured and his injury was proximately caused by the dangerous condition. It alleged that the notices distributed in the prison described health conditions that could develop as a result of multi-year exposure to the water, and that Jackson did in fact develop some of these conditions after drinking the water for a number of years. These allegations are not proof of causation, of course, but allegations, not proof, are what a complaint must contain to survive a demurrer.
The first amended complaint also sufficiently alleged that Biter had actual notice of the contamination in time to take countermeasures. The examples of the water contamination notices attached to the first amended complaint bore Biter's name and signature, and some of these examples included the language about health risks of long-term exposure. The dates on the notices encompass several years.
Further, the first amended complaint sufficiently alleged that Biter had authority, responsibility, means, and funds to take measures to protect against the danger. It alleged that, as warden, Biter had responsibility for the treatment of inmates, from which it could reasonably be inferred that he had authority and responsibility, as well as means and funds, for providing inmates with safe food and water. The first amended complaint also alleged that at some point during the contaminated-water period, Biter authorized the provision of bottled water to inmates who could pay, from which it could be inferred that providing bottled water was possible.
The trial court conceded the immunity of Government Code section 845.2 does not apply to a dangerous condition of public property and that the immunity of Government Code section 844.6 applies to public entities, not public employees. The trial court also held the immunity of Government Code section 820.2 was inapplicable at the demurrer stage. Defendants do not argue otherwise.
The trial court's reason for sustaining the demurrer against the individual defendants on this issue was that Jackson failed to plead that the contaminated water presented "a substantial risk of injury sufficient to constitute a dangerous condition" of the prison property. We disagree. Under Biter's management, the prison for several years caused prisoners to drink water that was, according to laws designed to protect human health, contaminated beyond an acceptable level. The dangers of such long-term exposure, as acknowledged by the Department of Public Health, and by Biter himself as indicated by his signature on the notices, included risks of "skin damage or circulatory system problems, and ... an increased risk of getting cancer." By alleging these facts, the first amended complaint satisfied the requirement of alleging more than a "minor, trivial or insignificant" risk of injury. (Gov. Code, § 830, subd. (a).)
Defendants argue the first amended complaint insufficiently alleged a dangerous condition because the notices distributed in the prison by order of DPH also stated that the situation was "not an emergency" and inmates did not need to use an alternative water supply. Defendants say that, because copies of the notices were attached to the first amended complaint, the statements in them must be taken as true at the demurrer stage and in fact must be given precedence over any contrary statements in the first amended complaint itself.
This argument is unpersuasive. First, the notice language relied on by defendants and the notice language relied on by Jackson are not inconsistent with each other. The only reasonable interpretation of the two sets of statements taken together is that short-term exposure to the excess arsenic was not dangerous to health but long-term exposure had significant health risks. The notices also claimed that the problem would be solved in the short term. For instance, a notice dated July 1, 2011, stated the water treatment system would be completed by October 2011, and a notice dated July 1, 2012, stated that it would be completed by November 2012. Since it is undisputed that the problem was not solved in the short term and Jackson is relying on injuries allegedly caused by long-term exposure, the alleged safety of short-term exposure is irrelevant.
Second, defendants misunderstand the rule about facts in exhibits to a complaint taking precedence over the facts alleged in the complaint itself. This rule does not mean that if a plaintiff attaches a document expressing a defendant's position on disputed factual claims, the plaintiff automatically loses on demurrer so far as those claims are concerned, regardless of any other allegations in the complaint or attachments. Defendants undermine their own view of the matter by citing Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, which illustrates the proper application of the rule. Dodd sued the bank for negligence after employees of a payroll company with which Dodd had contracted stole funds intended for Dodd's company's payroll. The money was diverted from an account at the bank. The bank demurred on the ground that it had no duty to Dodd as he was not its customer. The account at issue belonged to the payroll company and the employees were authorized signatories. Dodd's complaint alleged that he was the bank's customer, but also included exhibits showing that the payroll company was the account holder and the authorized signatories were the allegedly thieving payroll company employees. The complaint did not contradict those facts but alleged Dodd should be deemed a customer anyway because the bank knew of the arrangement by which his payroll funds were deposited in the account. The court held that, as a matter of law, this set of allegations showed Dodd was not the bank's customer, since the bank's alleged knowledge of the business arrangements between Dodd and the payroll company would not make Dodd the bank's customer even if true. (Id. at pp. 1625-1627.)
The present case is not similar. The water contamination notices bearing Biter's signature simply express the view that short-term exposure to the water is not an emergency. The Dodd court could not have held for the bank if the exhibit to the complaint had been merely, for example, a letter in which the bank denied that Dodd was its customer.
Defendants also argue that the first amended complaint did not sufficiently allege that Biter had funds or means to fix the water system's problem faster than it was in fact fixed. As we have said, however, the first amended complaint did allege facts from which it could reasonably be inferred that Biter was in a position to provide an alternative water source. For pleading purposes, it would be unreasonable to assume the warden of a California state prison, having statutorily prescribed responsibility for the treatment of inmates, is unable to access funds to provide safe meals, including safe drinking water, to all inmates in his custody. And the first amended complaint did allege, in so many words, that "Biter had the authority and the funds immediately available to him to take alternative action by providing bottle[d] drinking water to all inmates ...."
Assuming evidence of the facts necessary to prove his dangerous-condition-of-property claim against Biter exist, Jackson, a pro per prison inmate, may encounter obstacles to proving the necessary facts. Problems of proof, however, are not to be considered at the pleading stage. (See Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 613.) III. Remaining claims in the first amended complaint
The trial court did not err in its disposition of the remainder of Jackson's claims in the first amended complaint.
A. Dangerous-condition-of-property claim against Lopez and the department
On the dangerous-condition-of-property claim as to Lopez, the first amended complaint contains no allegations about how, as the chief medical officer, she could have ameliorated the problem. The first amended complaint does not allege that a chief medical officer has any responsibilities or powers related to the safety of a prison's water supply. As to the department, Government Code section 844.6 immunity barred liability for injury to a prisoner.
The department also was immune under Government Code section 844.6 from liability for injury to Jackson based on the claim under Government Code section 815.6 of a failure to discharge a mandatory duty. We further agree with the trial court's holding that the immunity of Government Code section 845.2 shielded the individual defendants from this claim. That section bars liability of a public employee for a failure to provide "sufficient equipment ... or facilities" in a prison. It might be thought that drinking water does not seem to be "equipment" or "facilities," but the mandatory duty expressed in the DPH order was not to take any available means to ensure that water users have uncontaminated drinking water (such as providing bottled water); instead, it was specifically to ameliorate the prison's water system so that it did not deliver contaminated water. The trial court did not err in viewing the water system as equipment or facilities.
B. Failure to summon immediate medical care
There was no immunity under Government Code section 844.6 for failure to summon immediate medical care, as the trial court acknowledged. The first amended complaint did not, however, contain any allegation that Jackson ever stood in need of immediate medical care or that medical care was ever denied him when he sought it. Instead, it alleged that he experienced symptoms that developed over time and were in fact observed by medical personnel. It also described treatment he received for his prostate condition. One of the exhibits further indicates that Jackson was given medication for bumps on his skin. Since the facts pleaded were deficient, we need not consider whether the trial court was correct in applying Government Code section 845.2 immunity to this cause of action.
The first amended complaint did express dissatisfaction with the treatment Jackson received for the skin condition. Despite the attachment showing this condition was treated with hydrocortisone, the first amended complaint says Jackson received "no treatment" for the condition. Even if this were so, the attachments to the first amended complaint indicate that medical personnel examined and evaluated Jackson's skin condition. The first amended complaint might be construed as claiming these personnel decided Jackson's skin needed no treatment and this was the wrong decision. This, in turn, might be said to amount to a claim of medical negligence even if it does not state a cause of action for failure to summon immediate medical care. The first amended complaint included no serious attempt to plead medical negligence, however. It included no allegations about how any act or omission by a medical practitioner breached a duty of care or caused injury. It did not allege, for instance, that the medication and surgery provided for Jackson's prostate condition, or the medication provided for his skin, failed to satisfy the applicable standard of care.
C. Deceit
The claim of deceit based on Civil Code sections 1709 and 1710 was directed against only Lopez in the first amended complaint. In essence, it alleged that Lopez knew Jackson's prostate and skin conditions were related to arsenic but caused her subordinates to minimize the significance of the symptoms and persuade Jackson they were caused by age, and he "alter[ed] his position" based on the subordinates' representations. A cause of action for deceit must be pleaded with specificity. The elements that must be pleaded are (1) representation, (2) falsity, (3) knowledge of falsity, (4) intent to deceive, and (5) reliance and resulting damage. (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 710, p. 125.) At least the fifth element was inadequately pleaded in the first amended complaint. The first amended complaint alleged that Jackson altered his position based on the purported misrepresentations, but it did not say how. If we inferred that he would have demanded other or additional treatment, the question would remain of what that treatment would have been, since the first amended complaint alleged nothing about why the treatment given was inadequate. In other words, even if Lopez caused prison healthcare workers to lie to Jackson about the causes of his symptoms, the first amended complaint contained no allegations about how these lies harmed him.
Even if it were assumed that Jackson was attempting to plead something less than fraud, such as negligent misrepresentation, the allegations in the first amended complaint were still insufficient. A plaintiff pleading negligent misrepresentation must sufficiently allege detrimental reliance, the same as a plaintiff pleading fraud. (B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823, 834.)
The trial court held that the immunity of Government Code section 822.2 also defeated Jackson's claim of deceit, at least to the extent it was not a claim for actual fraud, corruption, or actual malice. This is not correct, for Government Code section 822.2 had been held to apply only where the alleged misrepresentation affected financial or commercial interests, not where it involved a risk of physical harm. (County of Kern v. Sparks (2007) 149 Cal.App.4th 11, 20; Adkins v. State of California (1996) 50 Cal.App.4th 1802, 1818, overruled on other grounds by City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1156-1158; Garcia v. Superior Court (1990) 50 Cal.3d 728, 738, fn. 8.) The first amended complaint was insufficient on this cause of action for the reasons we have stated, however.
D. Possible other claims
As we mentioned above, in addition to the matters already discussed, the first amended complaint cited water safety requirements in Health and Safety Code section 116555 and California Code of Regulations, title 22, section 64431. We do not understand the first amended complaint to be attempting to state separate causes of action based on these provisions. Rather, they were cited only to support the allegation that the water in the prison was unsafe.
The first amended complaint also contained a reference to "wanton infliction of pain and suffering," "intentionally causing plaintiff to [incur] personal injury," and "knowingly ... and maliciously inflict[ing] physical injury, emotional and mental abuse." These references are included in the section headed "intentional tort." Defendants' appellate brief includes an argument construing remarks of this sort as a possible cause of action for intentional infliction of emotional distress and contending that any such cause of action has been forfeited because Jackson did not discuss it in his opening appellate brief. Regardless of forfeiture, we conclude the first amended complaint did not contain allegations sufficient to state the elements of a cause of action for intentional infliction of emotional distress.
E. Leave to amend
The trial court did not abuse its discretion in denying leave to amend with respect to any of the above causes of action. Jackson already had one chance to amend, and his briefs here and in the trial court suggest no amendments he could make to address the deficiencies found by the trial court. We have not expressed agreement with all the grounds on which the trial court relied, but we are not relying on any new grounds Jackson has had no opportunity to address. IV. Other issues
A. Motion for appointment of counsel in trial court
Jackson asserts the trial court erred when it denied his motion for appointed counsel. We disagree.
Jackson's motion for appointment of counsel stated he had a right to appointed counsel under the Americans with Disabilities Act because of his vision impairment and also under constitutional principles of equal protection and due process of law. There is no authority for the view that the Americans with Disabilities Act requires appointment of counsel as an accommodation for a disability of a plaintiff in a civil action. As the trial court pointed out, there also is no authority for the view that appointment of counsel is available under the disability-accommodation provisions of the California Rules of Court. (See Cal. Rules of Court, rule 1.100.)
Jackson also cited federal and state principles of equal protection and due process and claimed he had a statutory right to appointed counsel. Again, we disagree.
The State Constitution in Article 1, section 13, and the Sixth Amendment to the Federal Constitution provide for court-appointed counsel in criminal matters. (In re Gault (1967) 387 U.S. 1; In re Robinson (1970) 8 Cal.App.3d 783,786.) There exists no corresponding constitutional right to appointment of counsel for plaintiffs or defendants in civil proceedings. (Hunt v. Hackett (1973) 36 Cal.App.3d 134, 137.)
Inmate Jackson has the right to bring his civil action under Penal Code section 2601, subdivision (d) and Code of Civil Procedure sections 391 et seq. Under both Constitutions, he has the right to contest or defend a suit brought against him and, in certain circumstances, might even be entitled to counsel. (Payne v. Superior Court (1976) 17 Cal.3d 908.) However, we are unaware of any statute or case extending the right to counsel to indigents or inmate plaintiffs. (See id. at pp. 926, 927 ["We have not ruled that all indigents have a right to counsel in civil cases. Nor have we established that indigent prisoners who are plaintiffs in civil actions may secure appointed counsel or the right to appear personally."].) Furthermore, granting a prisoner both the right to appointed counsel and the right to a personal appearance would give the indigent prisoner more rights than are available to an ordinary indigent civil litigant. (Id. at p. 924.)
We find Jackson has no right to the appointment of counsel under the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) nor under the state or Federal Constitutions as a plaintiff in a civil matter and that the trial court was correct in denying his request.
B. Request to exceed page limit
Jackson challenges the trial court's denial of his request to file an oversize brief in opposition to the demurrer to his first amended complaint. The trial court seems to have abused its discretion when it denied this request, but the error was harmless.
According to the California Rules of Court, a party opposing a motion (including, ordinarily, a demurrer) can submit a memorandum of up to 15 pages. This limit does not include the table of contents, table of authorities, exhibits, attachments, declarations, or the proof of service. (Cal. Rules of Court, rules 3.1103(c), 3.1113(d).) Counted in this way, Jackson's memorandum of points and authorities in opposition to the demurrer to the first amended complaint had 30 pages, and thus was 15 pages too long. Jackson believed the limit was 25 pages and counted 37 pages in his brief, including a notice of opposition and tables of contents and authorities. Attached to his brief were 56 pages of exhibits and declarations. He filed a request for leave to file a brief that exceeded the limit by 12 pages.
The trial court denied the request on the ground that the excess pages were "materials which are outside the scope of the pleadings and not subject to judicial notice." Yet all the discussion in Jackson's memorandum consisted of his attempts to explain why the first amended complaint adequately pleaded his causes of action and why he believed defendants' arguments to the contrary were wrong. The attachments to Jackson's brief may or may not have been within the scope of the pleadings, but as we have said, such attachments are excluded from the page limit. The trial court either misunderstood the latter portion of Jackson's brief or misapplied the page limit to the attachments. Either way, it appears to have abused its discretion.
On appeal, defendants do not attempt to defend the trial court's reasoning; indeed, they do not even represent its ruling correctly. Defendants' opening brief in this court states that the trial court denied the oversize-brief request "as moot because it sustained [defendants'] demurrer without leave to amend." The trial court did not so rule and could not properly have done so. It would have made no sense to deny a request to submit an oversize opposition to a demurrer on the ground that the demurrer had been sustained. The argument is doubly curious on account of its having been written by the same deputy attorney general who drafted the proposed order that became the court's order denying Jackson's request.
Under other circumstances, we might reverse the ruling on the merits, require the court to reconsider its ruling on the request to submit an oversize brief, and require the court to reconsider its ruling on the merits in light of its new ruling on the oversize-brief request. Under the present circumstances, this is unnecessary. We have reviewed the entirety of the memorandum Jackson filed for the hearing on the demurrer to the first amended complaint and we find no arguments in it that would have led to an outcome other than the one the trial court arrived at, as modified by our partial reversal. In other words, after considering the excess pages Jackson submitted to the trial court, we still conclude the demurrer was correctly sustained except as to the issue on which we are ordering it overruled.
C. Motions for physical examination and appointment of expert witness
Jackson challenges the trial court's denial of his motions for a physical examination and appointment of an expert witness to testify about the alleged connection between arsenic exposure and his medical condition. The trial court never reached the merits of these motions, since it found them moot based on its decision to sustain the demurrer—a conclusion that made sense at the time because the motions related to Jackson's ability to present evidence in stages of the case that would not have taken place. It will be necessary for the court to consider these motions again on remand.
D. Jackson's nonappearance at demurrer hearing
In his objections to the tentative ruling on the demurrer, Jackson argued he was denied his right to appear at the hearing because his CourtCall request was lost. The trial court overruled this objection and Jackson raises it again now.
It is unnecessary to consider the merits of Jackson's claim that rights of his were infringed when the court ruled on the demurrer after conducting the hearing in his absence. With his post-hearing filing objecting to the court's decision to proceed without him, Jackson set forth the matter he intended to present in oral argument. We have reviewed this material and it does not alter our view of the extent to which the demurrer should have been sustained and the extent to which it should have been overruled. We accordingly conclude that any error on the trial court's part in proceeding in Jackson's absence was harmless.
E. Motion for appointment of counsel in this court
On May 18, 2016, Jackson submitted a motion for appointment of counsel to represent him on appeal in this court and a request for judicial notice. The clerk's office did not permit these submissions to be filed because they were not accompanied by proofs of service on opposing counsel. Jackson was so notified in a letter sent on May 25, 2016. Jackson never submitted the proofs of service, so the motion and request were never filed and we have not ruled on them.
DISPOSITION
The judgment of dismissal and the order sustaining the demurrer to the first amended complaint are reversed with respect to the cause of action against defendant Biter pursuant to Government Code section 840.2 for injury from a dangerous condition of property. The case is remanded to the trial court for further proceedings and the trial court is directed to overrule the demurrer with respect to that issue. The trial court is further directed to reconsider Jackson's motions for a physical examination and appointment of an expert witness as stated in this opinion. The judgment is affirmed in all other respects. The parties are to bear their own costs on appeal.
/s/_________
SMITH, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
GOMES, J.